Opinion
No. CV06 5005713 S
October 27, 2008
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
The defendant Rita Perusse has moved for summary judgment as to Count Two of the plaintiff's Second Revised Complaint dated June 12, 2007. The causes of action set forth in the Second Revised Complaint are for personal injuries allegedly sustained by the plaintiff when struck by a motor vehicle on May 1, 2005. Count One alleges that said personal injuries were caused by the carelessness and negligence of co-defendant Kelsey Perusse, a minor, in the operation of a motor vehicle. Count Two alleges that Kelsey Perusse was operating said vehicle with the general authority of the owner, the defendant Rita Perusse. The defendant Rita Perusse has moved for summary judgment as to Count Two on the grounds that there is no genuine issue of material fact that Kelsey Perusse did not have general authority from Rita Perusse to operate said motor vehicle, and summary judgment should be granted as a matter of law.
The named defendants in this action are Kelsey Perusse, p.p.a. for Shelley Perusse and Rita Perusse.
In her answer to Count Two of the Second Revised Complaint, Rita Perusse has denied that Kelsey Perusse operated the vehicle with the general authority of Rita Perusse the owner of the subject vehicle.
The plaintiff, in objecting to summary judgment, argues that summary judgment is not appropriate in cases involving General Statutes § 52-183, which creates a presumption that an operator of a motor vehicle is the agent of the owner, and any evidence that rebuts this presumption simply creates a question of fact. Additionally, the plaintiff argues that there is also a question of fact as to whether Kelsey Perusse had "second hand" or implied permission to operate Rita Perusse's motor vehicle on the date in question.
This matter was argued before the court on July 14, 2008. In considering the motion for summary judgment the court has transcript copies of deposition testimony of the defendants Rita Perusse and Kelsey Perusse, as well as, the plaintiff, Danielle Skane. The court also has a sworn affidavit from Kelsey Perusse.
I Standard of Law Re Summary Judgment CT Page 17068
"A Motion for Summary Judgment is designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 576 A.2d 829 (1989). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the non-moving party." Hertz Corp. v. Federal Ins., Co., 245 Conn. 374, 381, 713 A.2d 820 (1998). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). The moving party has the burden of demonstrating the absence of any genuine issue of material fact. Hertz Corp. v. Federal Ins. Corp., supra, 245 Conn. 381. "The opposing party must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Id. "A material fact is a fact which will make a difference in the result of a case." Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994); Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). "The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003).The test used by the court is to determine if the moving party would be entitled to a directed verdict if the same set of facts were presented at trial. Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990). A directed verdict is properly rendered if a trier of fact cannot reasonably and legally find in any fashion other than that directed. Santopietro v. New Haven, 239 Conn. 207, 225, 682 A.2d 106 (1996). The issue of causation is a question of fact for the trier of fact, Abrahams v. Young and Rubicam, Inc., 240 Conn. 300, 307, 692 A.2d 709 (1997), and can only become one of law "when the mind of a fair and reasonable person could reach only one conclusion." Id.
II Discussion
In this matter deposition testimony reveals that Danielle Skane, who was twenty-two years old, drove with her mother, Kimberly Skane, from Wilmington, North Carolina to visit Rita Perusse, who resided in Stratford, Connecticut. Rita Perusse is the mother of Kimberly Skane and also the grandmother of Danielle Skane. They were visiting Rita Perusse to help her clean out her residence in advance of Rita Perusse relocating to Idaho. On the date in question, May 1, 2005, Rita Perusse's oldest daughter Shelley Perusse and Shelley's daughter Kelsey Perusse, age twelve, were also assisting in the cleaning out of Rita Perusse's residence. Danielle Skane and the minor, Kelsey Perusse were loading items into a car owned by Rita Perusse in order to take the items to a dumpster located a short distance away. Danielle Skane, the plaintiff was injured when she was struck by the open driver's side door of the vehicle when the twelve-year-old minor, Kelsey Perusse, who was sitting in the driver's seat, placed the vehicle in reverse. There is little question that Danielle Skane, a twenty-four-year-old granddaughter, had the permission of Rita Perusse to use her vehicle on the date in question. Danielle had used the vehicle several times the same day prior to the accident to make trips to the dumpster, and she had used the vehicle on past occasions when she visited her grandmother, Rita Perusse. The issue before the court is whether Rita Perusse also gave permission to her twelve-year-old granddaughter, Kelsey Perusse, to operate her car.
The deposition testimony of the plaintiff; Danielle Skane indicates that Kelsey Perusse, her twelve-year-old cousin, obtained the keys to the vehicle from her pants, and when Danielle came out with a load of items to place in the car, the twelve year old Kelsey Perusse placed the car in reverse, striking Danielle. Danielle testified that Kelsey did not have her permission to operate Rita Perusse's vehicle, and that to the best of her knowledge, Kelsey did not have the permission of Rita Perusse, as well.
Kelsey Perusse testified at her deposition that she got into the driver's seat of Rita Perusse's car while the ignition was in the off position. However, the keys were in the ignition. She states that she started the car in the presence of the plaintiff, Danielle Skane, and Danielle instructed how to place the car in reverse. Kelsey, thereafter, placed the car in reverse and backed the car up, striking the plaintiff. Kelsey stated that she never had spoken to her grandmother Rita Perusse about operating her grandmother's vehicle, and Rita Perusse had never given her permission to operate Rita's vehicle. Rita Perusse has also denied giving Kelsey permission to operate her vehicle. Thus, all parties with the knowledge of the existence and scope of permission have testified that Rita Perusse did not give permission to Kelsey Perusse, a minor, to operate her vehicle.
Rita Perusse argues because she, the plaintiff Danielle Skane, and the twelve-year-old operator, Kelsey Perusse, all have denied that Rita gave Kelsey permission to operate her vehicle, she has overcome the presumption created by General Statutes § 52-183. General Statutes § 52-183 regarding the presumption of agency in the operation of a motor vehicle states:
In any civil action brought against the owner of a motor vehicle to recover damages for the negligent or reckless operation of the motor vehicle, the operator, if he is other than the owner of the motor vehicle, shall be presumed to be the agent and servant of the owner of the motor vehicle and operating it in the course of his employment. The defendant shall have the burden of rebutting the presumption.
Section 52-183 places the burden of rebutting the presumption on the owner of the vehicle, in this case, Rita Perusse. Normally, since the existence and scope of permission is a matter peculiarly within the knowledge of the defendant owner, the strict rule that any testimony contra ousts the presumption would seem to operate unfairly. The presumption does not necessarily vanish on the introduction of any evidence to the contrary. Rather, "[t]he presumption ceases to be operative when the trier finds proven facts which fairly puts in issue the question, and the burden of proving that the car . . . was operated by an agent of the owner . . . then rests upon the plaintiff; if no evidence relevant to the issue is produced, or, if countervailing evidence is produced but the trier does not believe it, the presumption applies, and the plaintiff is entitled to have the issue found in his favor." Koops v. Gregg, 130 Conn. 185, 188, 32 A.2d 653 (1943). The plaintiff argues that as a result of this statutory presumption, summary judgment is generally unavailable in cases involving § 52-183, and the deposition testimony of the parties does nothing more than demonstrate the existence of a factual issue which must be resolved by a jury. See, Masse v. Jonah, 27 Conn.Sup. 206, 207, 233 A.2d 696 (1967), citing O'Dea v. Amodeo, 118 Conn. 58, 170 A. 486 (1934).
In O'Dea v. Amodeo, supra, 118 Conn. 58 (1934), our Supreme Court discussed various types of presumptions and their different effects. "Focusing on the so-called statutory family car doctrine . . . and discussing the presumption included therein, the Court concluded that where information involving an issue was particularly within the knowledge of one person, a presumption would require placing the burden on that party not only to produce countervailing evidence but of proving the validity of that evidence. Id., 63. Thus, unless it were proven otherwise, the presumption was not rebutted, and if evidence was presented to rebut the presumption but such evidence was not believed, then the presumption would prevail even if the plaintiff presented no evidence in support of the presumption. Id., 66." (Internal quotation marks omitted.) DeNitto v. Wargo, Superior Court, judicial district of Fairfield at Bridgeport, No. CV 05 5000697S (Nov. 15, 2007, Kochiss-Frankel, J.) 44 Conn. L. Rptr. 513.
Several decisions have concluded that the existence of the presumption precludes the granting of summary judgment in favor of a vehicle owner. See Masse v. Jonah, 27 Conn.Sup. 206 (1967) (owner's affidavit insufficient to prove facts stated, therefore, presumption not rebutted); Laydon v. Agency Rent-A-Car, Docket Nos. CV92-024200, CV92-021216, judicial district of New Haven (November 17, 1994) (Silbert, J.) (strong probability that there was no agency not sufficient to find there was no fact in dispute); Torres v. Dellagheif, Docket No. 125808, judicial district of Waterbury (March 10, 1996) (Pellegrino, J.) (mere offer of affidavit rebutting presumption does nothing more than create an issue of fact); Doonan v. Clark, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 148729 (October 21, 1997, Nadeau, J.), supra, (relying on Laydon and Torres).
On the other hand, several decisions have concluded that summary judgment was appropriate despite the statutory presumption. DeNitto v. Wargo, Superior Court, judicial district of Fairfield at Bridgeport, No. CV 05 50006978 (Nov. 15, 2007, Kochiss-Frankel, J.) 44 Conn. L. Rptr. 513; Curran v. Duncan, Superior Court, judicial district of Danbury, No. CV98-0333456S (Oct. 25, 2000, Adams, J.) 28 Conn. L. Rptr. 640; see e.g., Hannah v. Buick, Docket No. CV98 0548002, judicial district of New London (May 14, 1999) (Mihalakos, J.) (detailed affidavit and documents sufficient to shift burden back to plaintiff; summary judgment for vehicle owner granted); Palmer v. Enterprise, Docket No. 154434, judicial district of Stamford/Norwalk (April 16, 1997) (D'Andrea, J.) (evidence that plaintiff was not an authorized driver and not an employee, agent or servant of defendant sufficient to defeat presumption and support summary judgment); Bevel v. Anneeta, Docket No. CV97 0344223, judicial district of Fairfield (February 3, 1998) (Skolnick, J.).
Section 52-183 goes further than merely establishing a presumption "in that it expressly places upon the defendant the burden of introducing evidence to rebut the presumption created by the statute. Moreover, the presumption is not ousted simply by the introduction of any evidence to the contrary. Indeed, . . . [t]he presumption ceases to be operative [only] when the trier finds proven facts which fairly put in issue the question . . . if no evidence relevant to the issue is produced, or, if the countervailing evidence is produced but the trier does not believe it, the presumption applies and the plaintiff is entitled to have the issue found in his favor." (Citation omitted; internal quotation marks omitted.) Jancura v. Szwed, 176 Conn. 285, 290, 407 A.2d 961 (1978). "Thus, not only must there be evidence which rebuts the presumption, but such evidence must be credited by the trier of fact." DeNitto v. Wargo, supra; Dunbar v. Mutone, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV000377051S, (October 24, 2002, Rush, J.).
"This Court is aware of the language of the Supreme Court decisions cited earlier to the effect that the facts rebutting the presumption of agency must be `proven,' see, Bogart v. Tucker, 164 Conn. 277 (1973), and the prohibition of deciding any facts on a motion for summary judgment. Nevertheless, when credibility is not at issue and the proof contravening the presumption is such that a jury could not find otherwise, summary judgment is appropriate. Any other conclusion would eviscerate the summary judgment procedure in these types of cases." Curran v. Duncan, supra.
There was no evidence submitted by the party opposing summary judgment that contradicts that Rita Perusse had no knowledge that Kelsey Perusse, a twelve year old, would be operating her car and that she never gave Kelsey permission to do so. Accordingly, Rita Perusse has submitted more than a simple denial of the agency/family relationship to rebut the presumption. She has also submitted unrefuted evidence from herself, Kelsey Perusse and the plaintiff, herself, Danielle Skane that Kelsey Perusse was driving the vehicle without her permission. In contrast, the party opposing summary judgment has offered no facts to support an agency relationship and relies solely on the presumption created by General Statutes § 52-182, the family doctrine law.
This court is aware of the language of the Supreme Court decisions to the effect that the facts rebuffing the presumption of agency must be "proven." Nevertheless, when credibility is not at issue and the proof contravening the presumption is such that a jury could not find otherwise, summary judgment is appropriate. The Supreme Court explicitly recognized that there was a basis for directed verdict when there was rebuttal evidence of such a nature that it could not rationally be disbelieved See, Fletcher v. Stoleson, Docket No. CV000177740S, judicial district of Stamford/Norwalk at Stamford (March 11, 2002, Rogers, J.), 31 Conn. L. Rptr. 518. No rational jury could disbelieve the unchallenged and overwhelming evidence that there was no agency and/or family doctrine relationship between Kelsey Perusse and Rita Perusse at the time of the accident. Therefore, there is no genuine issue of material fact regarding the lack of an agency relationship. In the absence of such a relationship there is no basis for holding Rita Perusse liable for the accident. DeNitto v. Wargo, supra.
Based upon the testimony from Rita Perusse, Kelsey Perusse and the plaintiff, Danielle Skane, it also is not reasonable to assume that it was forseeable by Rita Perusse, that Danielle Skane would give permission to a twelve-year-old to drive the vehicle owned by Rita Perusse, or that Kelsey Perusse would have the implied permission of Rita Perusse to drive her vehicle. The rebuttal evidence offered by Rita Perusse cannot be rationally disbelieved. Bogart v. Tucker, supra. Despite the distinctions in testimony between Danielle Skane, the plaintiff, and Kelsey Perusse as to what occurred between them on the date in question, there are no material differences in their testimony with respect to the lack of permission by Rita Perusse for Kelsey to operate the vehicle. There was no actual or apparent authority from Rita Perusse for Kelsey to operate the vehicle. Accordingly, the motion for summary judgment filed by Rita Perusse is granted.